Thinking Out Loud: Why We Still Orally Argue Cases
On June 3 and 4, UT will hold its annual Conference on State and Federal Appeals at the Four Seasons Hotel in Austin. I'm lucky enough to get to speak at the conference again.
This year, I wanted to take up the topic of oral argument preparation--not the typical "how to argue" topic (listen to the judges, answer the questions, blah, blah blah), but a real nuts and bolts presentation on the steps one goes through from the time one gets the argument setting to the day of argument.
Joining me for that presentation will be Judge Bill Boyce, Jennifer Bruch Hogan and Daryl Moore, thorough preparers all.
The paper and the presentation will also try to make the case that oral argument still matters, even in the era where we idealize the legalist, umpire judge who just calls the balls and strikes:
We idealize the judge who is the icy legalist. As Chief Justice Roberts put it during his confirmation hearings, the good judge is merely an umpire who calls the balls and strikes. And this idealized passivity is no new development. The Federalist Papers speak of judges that (unlike the executive or legislative branches) exercise “judgment,” but not “will.”
That kind of judge certainly would never be swayed by the dulcet tones of a mere orator, right? But are all the questions to be decided truly cold and legal? And contrast that with the old British system. It had its drawbacks, of course, but its emphasis on full oral development of the case let the public and the litigants have some level of confidence in the work of the court, which they had themselves observed first hand:
Proceeding orally step-by-step through the case, reading aloud pertinent written material, assures that each one of the three judges is having the same matter put before him and is focusing at the same time on the same facts, issues, and arguments. Three minds are working in harness together, heading toward a collegial decision. The judges' minds are exposed for all the world to see. There is little ground for anyone to doubt that a judge considered every point, because everyone in the courtroom can see whether each judge is listening and participating-as he usually is-or, equally important, whether he is asleep or inattentive.
(quoting Daniel J. Meador, English Appellate Judges From An American Perspective, 66 Geo. L. Rev. 1349 (1977)).
The conclusion I came to (and will demonstrate on the day) is that oral argument very much still counts. As legalist as we want to believe ourselves to be, there are many legal questions that are not as concrete as doing sums. Likewise, it is important for the parties and the public to see justice being done, and in appellate cases, that can only happen in oral argument.
The second part of the presentation is entirely taken up with steps for preparation. Watch this space for a preview of that, but I'd love to hear from some others. Feel free to send me an e-mail or leave a comment describing your method for getting sharp in advance of argument.
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